Free Objection - District Court of Arizona - Arizona

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J. Mark Ogden; AZ Bar No. 017018 [email protected] J. Greg Coulter; AZ Bar No. 016890 [email protected] Brandon A. Newton; AZ Bar No. 021565 [email protected] LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla, Plaintiffs, v. Eagle Produce Limited Partnership, Phoenix Agro Invest, Inc., SAM Management, Inc., Defendants.

Case No. CV03-2127 PHX-MHM DEFENDANTS' OBJECTIONS TO PLAINTIFFS' STATEMENT OF FACTS AND DEFENDANTS' STATEMENT OF FACTS IN OPPOSITION TO PLAINTIFFS' PARTIAL MOTION FOR SUMMARY JUDGMENT

Defendants Eagle Produce Limited Partnership ("Eagle Produce"), Phoenix Agro Invest, Inc. ("Phoenix Agro") and SAM Management, Inc. ("SAM") (collectively "Defendants"), by and through undersigned counsel, hereby submit their Statement of Facts in Opposition to Plaintiffs' Motion for Partial Summary Judgment ("DSOF"): 1. SAM does not determine the pay rates for Eagle Produce's tractor drivers.

Deposition of Stephen A. Martori, II ("Martori Deposition") at 80:23-81:11. Copies of relevant excerpts from the transcript of Martori's Deposition are attached hereto as Exhibit A. 2. Owen Brandt determined whether or not Plaintiffs, and all members of the

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tractor department, received raises. His decision was approved by his supervisor Jimmy Byrd. Deposition of Owen Brandt ("Brandt Deposition") at 60:24-65:14. Copies of the relevant excerpts from the transcript of Bradnt's deposition are attached hereto as Exhibit B.

Defendants, by and through their undersigned counsel, hereby object to the following paragraphs appearing in Plaintiffs' Statement of Facts ("PSOF"): 1. testimony. 2. Paragraph 6 is misleading as it fails to state when Phoenix Agro began to Paragraph 1 is conclusory and not supported by admissible evidence or

employ management level employees. PSOF Paragraphs 12 and 16 clarify that Phoenix Agro did not employ management level employees until July 2002, months after Plaintiffs' employment with Eagle Produce ended. See Defendants' Undisputed Statement of Facts in Support of Their Motion for Summary Judgment ¶ 2. 3. Paragraph 8 is unsupported by admissible evidence or testimony; the cited

testimony does not provide support for Paragraph 8. 4. Paragraph 9 is inaccurate. The testimony states that Nancy's last name is

Dunlap, not Martori. 5. Paragraph 11 is misleading as it fails to state when John Redmond became

employed by Phoenix Agro. As a management level employee, Redmond was not employed by Phoenix Agro until July 2002. PSOF ¶ 12. 6. Paragraph 19 is unsupported by admissible evidence or testimony, and

assumes facts not in evidence. Defendants admitted that Phoenix Agro owns some of the farmland used in Eagle Produce's operations. It did not admit that Plaintiffs performed work on that land. 7. Paragraph 23 is misleading as it fails to state when Phoenix Agro began to

employ management level employees. PSOF Paragraphs 12 and 16 clarify that Phoenix Agro did not employ management level employees until July 2002, months after Plaintiffs'

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employment with Eagle Produce ended. See Defendants' Undisputed Statement of Facts in Support of Their Motion for Summary Judgment ¶ 2. 8. Paragraph 25 is misleading as it fails to state when Phoenix Agro began to

employ management level employees. PSOF Paragraphs 12 and 16 clarify that Phoenix Agro did not employ management level employees until July 2002, months after Plaintiffs employment with Eagle Produce ended. See Defendants' Undisputed Statement of Facts in Support of Their Motion for Summary Judgment ¶ 2. Additionally, the cited testimony does not provide support for Paragraph 25. 9. Paragraph 29 is misleading and unsupported by admissible evidence or

testimony. Steve Martori stated that he believed SAM has the authority to determine pay rates of Plaintiffs, but "from a practical standpoint I know they don't." DSOF ¶ 1. Martori's testimony demonstrates that SAM did not determine the pay rates of Plaintiffs. 10. Paragraph 32 assumes facts not in evidence. Martori testified that he would

have the authority to fire Byrd. The cited testimony does not support the allegation that Byrd "was indirectly responsible for supervising the Plaintiffs." 11. Paragraph 33 assumes facts not in evidence. There is no evidence of who

owned the land where Plaintiffs worked. 12. Paragraph 36 misstates testimony and assumes facts not in evidence. Brandt

was asked whether planting occurred year round at Eagle Produce. He testified that there was a window where no planting work was ongoing. Brandt did not provide testimony as to whether or not tractor operators in Plaintiffs' crew that could not plant worked year round in 2002. 13. Paragraph 38 misstates testimony and is unsupported by the evidence.

Defendants admitted that Eagle Produce employed Plaintiffs. Neither Phoenix Agro nor SAM have ever employed Plaintiffs.

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RESPECTFULLY SUBMITTED this 1st day of September, 2005

s/Greg Coulter J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON, P.C. Attorneys for Defendants I hereby certify that on September 1, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Kristina Campbell George H. McKay Community Legal Services 305 South Second Avenue Phoenix, AZ 85036-1538 s/ ME Martin
Firmwide:80374335.1 046716.1003

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